Workplace Relations

Case study: FDV leave

Published 25 July 2023

In a recent case held before the Fair Work Commission (FWC), an employee was deemed to be unfairly dismissed by their employer based on the applicant’s request for unpaid Family Domestic Violence leave.

During the process, it was concluded the full-time employee was not given the opportunity to respond, there was no procedural fairness and the dismissal was determined to be harsh, unjust and unreasonable.

When dismissing an employee, the FWC has a best practice approach that should be adhered to, ensuring an employee is not terminated unfairly. Two of the main processes include allowing the employee the opportunity to respond to any allegations made against them and ensuring there is procedural fairness throughout the process.

Factor #1: Opportunity to respond
Looking further into allowing the individual an opportunity to respond, an employee must be notified of the circumstance that may result in their termination and must also be given an opportunity to respond to the reason before the decision to terminate is made. In circumstances where an employee is aware of the precise nature of employer’s concern about their conduct or performance, and has a full opportunity to respond to the concerns, this would be enough to satisfy the requirements of this section.

In the above mentioned case, the employee received a text message response to their request for unpaid family and domestic violence leave which outlined the request could not be accommodated and their employment was terminated. In this situation they did not allow the employee a chance to respond, nor did they discuss alternate arrangements to their request. This was the first indicator the employer did not follow the appropriate steps.

Factor #2: Procedural fairness
Procedural fairness refers to the decision-making process followed or the steps taken by employers or the decision maker, rather than the actual decision itself. The commission will take procedural fairness into consideration when deciding if a dismissal has been harsh, unjust or unreasonable and it can look like the following:

whether an employee has followed their own procedures in dismissing an employee
whether the employee had an opportunity to explain their side of what has happened, or
being able to seek advice or have a support person available at the meeting.

In this case, the employee did not have an opportunity to respond, and the decision process in terminating the employing was not fair. The case saw back and forth communication between upper management and the employee, with no clear indication if her initial request was accepted. After numerous days of no response, she received a text message saying her employment is terminated. This consequently was the second indicator to the commission she was unfairly dismissed.

Factor #3: the dismissal was harsh, unjust and unreasonable
In determining whether the concept of the termination was harsh, unjust or unreasonable, the commission considered whether it was:

unjust because the employee was not guilty of the alleged misconduct
unreasonable because the evidence or material before the employer did not support the conclusion
harsh on the employee due to the economic and personal consequences resulting from being dismissed, or
harsh because the outcome is disproportionate to the gravity of the misconduct. In other words, the punishment does not correlate with the crime.

Based on the evidence provided in the above case and the overarching reason for the employee’s dismissal, the judge deemed the actions by the employer to weigh strongly in the favour of the employee finding the dismissal to be harsh, unjust and unreasonable in which the former employee was awarded $17,874.70 plus super in compensation.

Case study: FDV leave

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